DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Applicant’s amendments dated 8/5/26 are hereby entered.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1, 7-13, and 19-20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
Claims 1, 7-13, and 19-20 are directed to an abstract idea without significantly more. The claims recite a mental process that can be performed by a human being and/or the rules of a game.
In regard to Claims 1, 13, and 20 the following limitations can be performed as a mental process by a human being in terms of claiming collecting data, analyzing that data, and providing outputs based on that analysis which has been held by the CAFC to be an abstract idea in decisions such as, e.g., Electric Power Group, University of Florida Research Foundation, and Yousician v Ubisoft (non-precedential); and/or claim the rules of a game which has been identified by the CAFC as being an abstract ides in decisions such as, e.g., Savvy Dog Systems v. Pennsylvania Coin (non-precedential; 2023-1073; 3/21/24), in terms of the Applicant claiming:
[a visual] object control method comprising:
displaying a [visual display] comprising a first control displaying a first [visual] item currently used by the [visual] object and an item switching control;
switching the first [visual] item in the [visual display] to a second [visual] item in response to a first operation on the item switching control, the first operation comprising a touch control operation on the item switching control having a touch control duration less than a duration threshold, the second [visual] item being next in line after the first [visual] item in an item list, and controlling a [visual] object to handhold the second [visual] item; and
displaying the item list at the item switching control in a form of a switching wheel centered at the item switching control, receiving a selection instruction selecting a third [visual] item from the item list by a dragging instruction from the item switching control to the third [visual] item within the item list, and switching the second [visual] item in the user interface to the third [visual] item in response to a second operation on the item switching control, the second operation comprising a continuous press on the item switching control, the continuous press having a touch control duration greater than or equal to the duration threshold, and controlling the [visual] object to handhold the third [visual] item, wherein the display of the item list is canceled when the continuous press ends without selection in response to disappearance of a touch control signal corresponding to the continuous press. without switching the second [visual] item.
In regard to the dependent claims, they also claim an abstract idea to the extent that they merely claim further limitations that likewise could be performed as a mental process by a human being and/or the rules of a game.
Furthermore, this judicial exception is not integrated into a practical application because to the extent that additional elements are claimed either alone or in combination such as, e.g., embodying Applicant’s abstract idea as computer code stored on a non-transitory computer readable medium that is executed on a computer processor, and/or employing a user interface, these are merely claimed to add insignificant extra-solution activity to the judicial exception (e.g., data gathering), to embody the abstract idea on a general purpose computer, and/or do no more than generally link the use of a judicial exception to a particular technological environment or field of use. In this regard, see MPEP 2106.04(d)(I) in regard to “courts have also identified limitations that did not integrate a judicial exception into a practical application…”
Furthermore, the claims do not include additional elements that taken individually, and also taken as an ordered combination, are sufficient to amount to significantly more than the judicial exception because to the extent that, e.g., embodying Applicant’s abstract idea as computer code stored on a non-transitory computer readable medium that is executed on a computer processor, and/or employing a user interface, these are well-understood, routine, and conventional elements and are claimed for the well-understood, routine, and conventional functions of collecting and processing data and/or providing an analysis/outputs based on that processing. To the extent that an apparatus is claimed as an additional element said apparatus fails to qualify as a “particular machine” to the extent that it is claimed generally, merely implements the steps of Applicant’s claimed method, and is claimed merely for purposes of extra-solution activity or field of use. See MPEP 2106.05(b). As evidence that these additional elements are well-understood, routine, and conventional, Applicant’s specification discloses the support for these elements in a manner that indicates that the additional elements are sufficiently well-known that the specification does not need to describe the particulars of such additional elements to satisfy 35 U.S.C. § 112(a). See, e.g., F15 in Applicant’s PGPUB and text regarding same and, e.g., F3 and text regarding same regarding employing a user interface.
Also, to the extent that Applicant’s claims may require a human being placing his/her finger in certain locations this also does not render “significantly more” to the extent that such an action does not require any particular machine and/or the transformation of any particular article. See MPEP 2106.05(b) and (c).
Response to Arguments
Applicant argues on page 10 of its Remarks in regard to the rejections made under 35 USC 101:
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Applicant’s argument is not persuasive. As outlined in the 101 rejection made supra, the BRI of Applicant’s claims includes that they are directed to collecting data (e.g., regarding certain hand/finger movements being made by a human being), analyzing that data (e.g., by comparing it to various thresholds), and providing outputs based on that analysis (e.g., providing certain visual displays based on the comparison). Claims directed to such subject matter have been consistently held by the CAFC to be patent ineligible as being directed to a mental process in decisions such as, Electric Power Group, University of Florida Research Foundation, and Yousician v Ubisoft (non-precedential). That Applicant claims a touch screen as the device by which to generate the data regarding the human hand/finger movements is not identified in the 101 rejection as being part of the abstract idea.
Applicant argues on page 11 that its claimed invention is analogous to that of claim 2 in the Office’s 101 Example 37. Applicant’s invention, however, does not concern determining the amount of memory used by an icon employed as part of a GUI.
Applicant argues on page 11 of its Remarks in regard to the rejections made under 35 USC 101:
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Applicant’s argument is not persuasive. As outlined supra, the BRI of certain of Applicant’s claimed limitations includes that they can be performed as a mental process, in terms of collecting data regarding human movements, comparing those movements to certain metrics, and providing differential visual outputs based on those comparisons. Yousician concerned precisely this same nature of invention and the subject therein was invalidated as being abstract.
Applicant further argues that it does not claim an abstract idea in the form of the rules of a game. See, e.g., however, the CAFC’s decision in In re Smith and In re: Marco Guldenaar, both of which concerned claims directed to games whose rules involving the human’s manual manipulation of game indicia (playing cards and dice) leading to certain visual displays. Applicant’s claims are likewise directed to a human manipulation of certain visual displays, as part of a combat game.
Applicant’s claimed invention is not analogous to that of Core Wireless because it does not concern a method of arranging a GUI such that it optimizes the utility of a small mobile device display. Applicant’s claimed invention is not analogous to that of Data Engine Technologies because it does not concern the navigation of a three-dimensional computer spreadsheet. Instead, Applicant’s claimed invention concerns taking certain actions based on user inputs into a GUI and is more closely analogous, therefore, to the invention found to be patent ineligible in, e.g., Trading Technologies v. IGB LLC (2017-2257; 4/18/19).
Applicant’s further arguments regarding various case law decisions are not persuasive for the reasons already provided supra in regard to those decisions. That Applicant claims collecting a particular kind of data, analyzing that data in a particular manner, and then providing a certain claimed visual display based on that analysis does not distinguish Applicant’s claimed invention, in other words, from the CAFC decisions holding that such subject matter is abstract as a mental process.
Applicant’s argument on pages 20-21 of its Remarks are not persuasive because the required Berkheimer finding need only be made in regard to the elements claimed in addition to the abstract idea (alone, and in combination) and is not made in regard to the abstract idea itself. See MPEP 2106.05(d): “A factual determination is required to support a conclusion that an additional element (or combination of additional elements) is well-understood, routine, conventional activity. Berkheimer v. HP, Inc., 881 F.3d 1360, 1368, 125 USPQ2d 1649, 1654 (Fed. Cir. 2018)”, emphasis original. And Applicant’s claimed limitations in regard to collecting data regarding certain hand movements, analyzing that data, and providing visual outputs based on that analysis are identified in the 101 rejection as being part of the abstract idea and not elements claimed in addition to that abstract idea.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the Examiner should be directed to Mike Grant whose telephone number is 571-270-1545. The Examiner can normally be reached on Monday through Friday between 8:00 a.m. and 5:00 p.m., except on the first Friday of each bi-week.
If attempts to reach the Examiner by telephone are unsuccessful, the Examiner's Supervisory Primary Examiner, Peter Vasat can be reached at 571-270-7625. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MICHAEL C GRANT/Primary Examiner, Art Unit 3715
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